Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1887-11-18
TIE NEwcoMB.M11.LER CASE.

The case Of w. w. Newcomb against
David W. Miller and wife has recently
been heard by Judge Read Of Bellows Falls
rs special master, who is expected to file a
report of his proceeding at the next March
term of court. The case grows out Of an
alleged contract claimed TO have been made
by David Miller with said Newcomb and
Newcomb brought a bill in chancery setting
forth the claimed contract and asking that
decree might be made to compel "A specific
performance Of il.
At the hearing before Judge Read. who
was appointed by the court ~ hear the
case and report the facts, Newcomb pre-
sented n paper dated April 2gth. 1887,
signed by David W Miller, which paper
sets forth in substance that Miller had sold
his lumber and business to said Newcomb
for the sum of 800, and rented to him the
lumber yard and sheds for the period Of
five years for 500 per year, together with
the privilege of purchasing the real estate
OF said Miller situated upon Main street in
Brattleboro at any time within said five
years for the sum of 5000
Mr.. Newcomb testified that this contract
MAS entered into under the following cir
cumstances That hearing that Mr.. Miller
desired to dispose of his lum Der business he
negotiated with him for the purchase Of the
same at the same time stating ~ him that
he did not wish 10 purchase said business
unless he could also have the real estate
that the result Of this talk was that they
agreed upon terms Of contract that he
NeWcomh, made II memoranda of same,
took the memoranda home with him and
from the same drew the contract, aud up
on the following morning went 70 Mr. Mil
ler's house and handed 70 him the written
a,.s... ! ~
the same read 1t over in the presence and
hearing Of Newcomb, suggested two chang
es therein, which were made, and there
upon signed the same That no one, aside
from the parties was present at the time
of the making Of the memoranda or at the
time the contract was signed. No claim
was made by Newcomb that Mrs. Miller
had anything 10 do with the contract hat
ever, and she did not sign the same
David W Miller testified IN substance
that he sold his lumber at cost to Newcomb
and agreed TO rent the yard and sheds to
him for five years that after all inventory
had been taken of the lumber he went into
his house with Newcumb and that after
Newcomb had figured out the value Of the
lumber at cost prices, he dictated TO said
Newcomb III the presence of Ned Hadley,
the terms Of contract. That Newcolnb
wrote as he dictated that as Newcomb
was about to leave, he Miller remarked,
What If my wife or myself should be tax
en- away and the real estate should he for
sale, what should | do with the FIVE wears
lease, and further said, Il suppose should
be compelled TO buy you off " That there
upon Newcomb replied, If YOU should con
clude to sell your real estate | want the
first privilege Of purchasing the same
he t.r,n .r,,.
this privilege at my option during the five
years, and the price is Ia be $1,000" That
Newcomb gathered up the papers, went
out, and returned the next morning with
several papers and produced one with the
remark that he had copied the contract
That he requested Newcumb to read it, and
that the contract was then read to him
Just as he Ind stated and dictated il the
day previous that Newcomb then handed
the paper, as he supposed, from which he
had read. 20 him, and he signed the same
without reading it, Mrs. Miller testified
that she was III the room part of the time
on the morning the contract was signed.
that she did not hear the same read but
saw paper handed h. her husband, which
he signed without examining it,
Mr.. Hadley was not present at the time
the contract was signed but testified that
he was present the day previous when Mr.
Miller dictated the terms thereof and testi-
fled to what then occurred, substantially as
Mr. Miller had stated. 1t further appeared
IN evidence that Mr. Miller previous 10 and
about the time Of the making of the con
tract, was asking $1,000 for his real estate,
that he insisted 10 Chas. Miner who desired
to purchase the property that the least he
would take was $1,000, and then his wife
must have two front rooms reserved for
her use during life. Several witnesses tes-
titled that the property was worth in open
market S6JOO, at the time the contract was
made with Newcomb, and Miller said he
had never offered it for less than $1,000 ex-
cept to said Miner
1t further appeared that after Newcomb
had got his contract, and before he ever
mentioned the matter to Miller, he, New
comb, retained counsel in the case and left
his contract in the hands of his ATTORNEYS
That on the oath Of August last he in
formed Miller that he had concluded to take
his real estate according TO the contract
for $4,000. That Miller thereupon became
excited. said he never agreed to sell his
real estate unless he wanted TO- and when
! invited to go 70 the office Of Newcomb's coun-
sci, for the purpose Of reading contract, de-
clined 10 do SO, saying that he knew what
/ biAS N'AAhl AAb Nthh anu bldi was enough
Testimony was introduced by complainant
tending to show that Mr.. Miller had stated
to several persons that he had sold his lum
Der business aud given Newcomb the priv
llege of purchasing real estate Mr. Miller
conceded that he had conversed with sew
eral persons about the sale, but that he
had never stated to any person that New
comb had the right to purchase ut his Cd
ton, but that he had simply given him the
first privilege of purchasing, if he, Miller.
should decide 10 sell The complainant
witnesses, aside from Newcomb. who con
ceded the real estate to be worth SG5OO
testified that the fair market value was
| from $1,000 10 $4,000
The question as to what the contract WAS
is to be determined by the special master.
Judge Read, and if found in favor of com
! plainant, the court will determine whether
any decree for specific performance of
same can be made as against the homestead
rights of Mrs Miller or whether damages
can he recovered in the present case.
Waterman x Martin for complainant
Z. b. Eddy and Haskins K Stoddard for de
! PENDANTS.
Y. NJ. @. A. NOTES.
The first of a series of practical talks ia
young men will be given in the association